Every year on January 1, much of the world celebrates Public Domain Day: the day when new works fall out of copyright and enter the public domain. In Canada and New Zealand, January 1, 2018 marked the day when creative work by anyone who died in 1967 (50 years ago) became part of the public domain. In most of Europe and South America, it marked the day when creative works by anyone who died in 1947 (70 years ago) became public domain.
In the United States, it marked yet another day when zero creative work automatically entered the public domain. While other countries got access to Dorothy Parker’s writings, Woody Guthrie’s songs, and Rene Magritte’s paintings, the people of the United States had access to the exact same works created before 1923 that they’ve had for the last two decades.
2018 marked the 20th year of the United States’ public domain drought, thanks to the Copyright Term Extension Act of of 1998. Passed after extensive lobbying by the powerful Walt Disney Corporation and other holders of valuable intellectual property, this act extended the term of copyright from 56 years to the author’s lifetime plus 70 years. Corporate “works for hire” (such as, say, Marvel and DC Comics) got an even bigger extension; their copyright term would last for 95 years after publication.
In addition, the Act was retroactive. It applied to existing copyrights as well as new ones, creating a 20-year drought of public domain works. As Smithsonian explains, “publicly owned work is restricted to anything created before 1923, government works, or work explicitly licensed as public domain by its creators.” (If you’re interested in licensing anything of yours for the public, be sure to check out Creative Commons licenses.)
This lengthy copyright term has created numerous problems. It has entrenched the profitability and near-monopolistic power of entities like the Walt Disney Corporation. It makes it difficult for anyone to restore or preserve deteriorating silent films, since they would need to contact the copyright holders in order to do so. It keeps movies that use pop songs from streaming services. It means that Americans can’t buy cheap, low-cost versions of essential literary works from high modernism, the Harlem Renaissance, and other movements we routinely study in school.
However, our copyright law also affects big-budget film and television projects.
If you look at the properties that are being reimagined, many were themselves created by drawing on public domain works. For example, Disney’s iconic animated movies drew on folktales, myths, or fairytales published by Hans Christian Anderson or the Brothers Grimm. Snow White came out in 1937, based on the Brothers Grimm’s book of fairy tales published in 1812 and 1815. Alice in Wonderland came out in 1951, based on Lewis Carroll’s 1865 Alice’s Adventures in Wonderland. The expiration of Carroll’s, Anderson’s, and the Grimms’ copyrights opened the door for visionary and iconic creativity by the Walt Disney Corporation.
And yet, today’s creators cannot do the same with Superman, Disney’s The Little Mermaid, or the works of the Beat Poets. They have some workarounds, of course. A work that is transformative or satirical is protected by “fair use” law. But what is transformative enough? And who trusts a judge to make that call? Or who trusts a corporation not to spite-sue them in order to squeeze them financially? As a result, corporations are more skittish about adapting questionably public works, and they are incentivized to maximize profits on the intellectual property (IP) that they own outright.
Of course, copyright law is not alone is leading to our current situation. In an increasingly crowded film and television landscape, established IP has a better chance of breaking through with audiences who have dozens of options. Studios have always been risk-averse, chasing the illusion of a “safe bet,” and this has led to them copying each other’s business models since the beginning of the industry. All of that is definitely also in play here.
However, I think it’s worth looking at the stifling effects of U.S. copyright law for creativity. The ability to remix and play with older culture is always important; as we saw above, some of the most iconic Disney films were created by freely screwing around with existing properties. But I’d argue that it’s especially important in our age of the internet. Because the internet, as academic Peter Lunenfeld described it, has arguably given rise to its own artistic aesthetic. By condensing access to all the world’s information into one machine (and, often, the one portal of Google), it has demolished the traditional lines between the art of different eras, different subcultures, and different genres. Its aesthetic is appropriating and transforming and mashing together.
Lunenfeld put forward Baz Baz Luhrmann’s Moulin Rouge as one of the most emblematic films of the internet aesthetic, and whatever you think of the movie’s merits, I think he’s onto something. It’s “the antithesis of purity, proffering instead a spectacular hodgepodge, a melange, and a remixer’s delight … The references in his film move effortlessly from place to place and decade to decade.”
In doing so, Moulin Rouge typifies the internet approach to creativity: remixing shamelessly, from different eras and influences, with no restraints but “these are things I like.” It maps onto the artistic mentality of a generation who’s had access to Google, Tumblr, and Pinterest boards, who’s more accustomed to thinking of things outside their chronological and ideological timeframes. We reblog and edit images and compare all of our favorite things from across times and genres. They all exist together in the nebulous world of the internet.
And yet, what is arguably our dominant mode of cultural production – film and TV – legally can’t take advantage of our dominant ethos of cultural production. Even internet-y pastiche that does have the support of studio legal departments, such as Ready Player One, has run into extensive copyright and clearance problems as it tries to mash together all the IP that its main character idolizes. And Ready Player One isn’t even built on breaking and remaking those properties; it’s just homaging them.
There are certainly benefits to the extension of copyright protections. I love that U.S. copyright protections are applied automatically, even if an artist doesn’t know enough to file for it; that means artists who don’t have lawyers or an education in copyright are still entitled to protection for their creativity. That provision ensures there isn’t a balance of power in favor of corporations who are the only ones who can afford to file for copyright. I like the idea of artists’ children being able to benefit from their parents’ works, particularly if said parent dies young. I like when artists get paid.
However, I think it’s worth asking whether the United States’ unique-in-the-world public domain drought has affected its art-making. A corporation-approved, IP-holder-sponsored reimagining of an iconic work is fundamentally different from one that’s just freely riffing on that same work. Movie studios are far more likely to want to re-create the feeling of the original work, playing on nostalgia and a market they already know is there. Individual artists are more likely to break that work and remake it into something new and exciting, just as Walt Disney took the mournful and heavily Christian “Little Mermaid” short story and made it into the colorful and musical Little Mermaid movie.
When we finally get some new public domain works in 2019, I hope it helps our movie culture to recover, at least a bit, from the reboot mentality and start to break and redo things again. Producing new stories, pulling from old ones, and using those pieces to make some beautiful new Frankenstein movies is kind of what a collective, creative culture is all about.
(Featured image: Win McNamee/Getty Images)
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Published: Apr 1, 2018 03:25 pm